Presuming to know the law

ignorantia juris, quod quisque scire tenator neminem excusat *

Imagine the chaos that would unfold if one were able to defend a drunken driving charge by claiming not to know of the offence. But, in light of the volume and complexity of contemporary law, is the rule that ignorance of the law is not a defence fair? Generally, the answer will be in the affirmative, but the question raises wider issues about difficulty in understanding the law.

Of course, the rule does not mean that everyone is expected to actually know the law, they are merely presumed to know it so that they cannot be excused on the basis of ignorance. Nevertheless, many laws are inaccessible; sometimes literally. Take this example concerning the Criminal Procedure Act 2010:

For reasons unknown the Act (which among other things prescribes new procedural and evidential rules applicable to all trials since enactment) has not been published by Official Publications and it is not possible to get a copy. At a murder trial in the Central Criminal Court recently the prosecution sought to rely on the 2010 Act but could not produce a copy. Did someone say Kafka?

Do not want
Legislation fail

The bulk of Irish laws, particularly acts and statutory instruments, are available online but that does not mean that they are accessible. Beyond primary law, it is amazing how many simple legal documents presented to the public remain so complicated. Below is a small example.

Around 64% of summary cases in the District Court relate to road traffic (333,161 in 2009) and given that the Road Traffic Acts 1961 to 2007 and related legislation are of such wide application, one would think them suitable for consolidation or at least restatement (bizarrely, the Attorney General’s office has restated the Tourist Traffic Acts 1939 to 2003, but not the Road Traffic Acts).

Order 15 Rule 3(1) of the District Court Rules provides:

A summons shall state shortly and in ordinary language particulars of the cause of complaint or offence alleged …

The summons for a road traffic offence will state the nature of the offence at its head; for example: “Failure to produce insurance certificate“. The body of the summons itself will set out the details:

  1. the name and address of the accused;
  2. details of the application by a member of the Gardaí for the summons to issue;
  3. the time and venue of the court at which the prosecution will be dealt with;
  4. the date and location of the alleged offence; and
  5. the law under which the offence arises.

So, what if you are served with a summons headed “Non display of disc (use)“? This could refer to a tax, insurance or NCT disc, so the final part of the summons (5) is important. In the case of the summons I have in mind, that section states that the offence was committed:

Contrary to sections 73(1) and 76 (as amended by section 63 Finance Act 1993) of the Finance Act 1976.

Huh?

Reading these sections suggests the existence of an offence and the potential penalties, but where is the plain statement of what offence is alleged? Is the accused to be prosecuted for not displaying the disc referred to at the head of the summons or for not having the licence referred to in section 73(1)? And, either way, what disc or licence are we talking about?

Section 73(1) points to section 5(5) of the Roads Act 1920, a pre-Free State statute that belongs to the statutes of the United Kingdom of Great Britain and Ireland. It has been preserved in Irish law but you won’t find it on the Irish Statute Book. It is still in force in the UK and available on their legislation directory, which is so good that it consolidates amendments. Section 5 of the Act was repealed there in 1949, but the UK government has helpfully retained the original version available here.

Having made it thus far, we find that section 5(5) provides:

Subject as may be prescribed, every such licence as aforesaid shall, in the prescribed manner, be fixed to an exhibited on the vehicle in respect of which it is issued.

Despite having torn out at least some hairs at this point, we appear to be near the legislative treasure so let’s search back in section 5 for the aforesaid licence; where we find that it is probably one issued under the Finance Act 1920. It is here that I throw in the towel.

The offence, for anyone still with me, is of not displaying a tax disc.

Lawyers have it easy: they will either know the offence from experience or can look up a book and find the answer in a few seconds. But you don’t necessarily need a lawyer to attend the District Court for a case of this nature and there is no reason why the summons should not state at its head “Non display of tax disc“.

It is hard to see how a cryptic summons like this, though rare, satisfies O15R3 of the District Court Rules nor is it fair or practical for such unnecessarily complex legal instruments to remain in use.

* Ignorance of the law, which everyone is presumed to know, excuses no one.

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